Recalls, lawsuits, traffic tickets — wearable tech is starting to get attention from legal system


Libbie Canter, from left, of Covington and Burling, Lisa Adelson of DesignLaw Group and patent lawyer Joseph Murphy during a discussion that took place last month at Fashion Law Week DC at Howard Law School. Below, Todd Blatt of Custom 3D Stuff with a wearable device during Fashion Law Week DC. In the past year, legal issues resulting from wearable technology have ended up in court, as well as in front of law enforcement officials. (Jeffrey MacMillan/Jeffrey MacMillan)

When Adidas sued Under Armour last month — accusing the Baltimore athletic retailer of infringing on patents used in its fitness tracker app, MapMyFitness — it wasn’t just the sports apparel world that took notice.

Lawyers did, too.

Since last year, legal issues surrounding wearable technology — any technology that can be worn on the body, such as clothes, watches or glasses — have started creeping into the courts and under the purview of law enforcement.

The suit against Under Armour is one of the first known commercial cases involving wearable technology and patent law. But it is not the first time wearable devices have prompted questions about the liability of the companies that make — and the consumers who use — them. In February, San Francisco-based Fitbit recalled its Force wristband activity tracker after some users complained it caused skin irritation. In October, a California woman was pulled over for speeding while wearing Google Glass and cited for having a video screen on while driving — the closest existing violation because California vehicle code does not specifically mention computer-in-eyeglasses technology. It is believed to be the first-ever citation over Google Glass.

The laws that serve as the basis for these actions — patent law, tort law — have been around for centuries. But increasingly, they are being applied to new and fast-growing technology found in products ranging from smart watches that monitor your heartbeat, to devices that track calorie intake and sleep patterns.

“Any area of the law will be impacted by these new technologies,”said Lisa Adelson, a patent attorney at Saidman DesignLaw Group, a boutique Silver Spring law firm that represents companies, including Apple and Toyota, in defending and procuring patents for computers, car parts, furniture and other products. Adelson spoke last week at Fashion Law Week DC, a week-long event held at Howard Law School that addresses legal issues in the fashion industry.

“It’s a wearable technology item, but the underlying law is traditional patent law, the same law that applies to chemical compounds,” Adelson said of the Adidas lawsuit, which alleges that Under Armour infringed on several Adidas patents that are now used in MapMyFitness apps.

Under Armour acquired MapMyFitness in 2013. The patents in question include those that enable “real-time interactive communication and automated route generation,” “personal data collection systems and methods” and “performance monitoring apparatuses,” according to the complaint.

The suit was filed Feb. 4 in U.S. District Court for the District of Delaware, and says that Under Armour’s director of innovation and research was previously a senior innovation engineering manager at Adidas with direct knowledge of Adidas’ patent portfolio, including the patents mentioned in the suit.

A spokesman for Under Armour said the company is aware of the lawsuit and is reviewing the complaint.

Where this all goes remains to be seen, legal experts said. With the exception of medical apps, federal regulators have largely stayed out of regulating wearable devices, but that stands to change as the technology becomes more commonplace. Fitbit declined to say how many Force wristbands were affected by the voluntary recall, saying only that less than 2 percent of users complained about the skin irritation.

“If a recall gets big enough, I do think regulators may get involved,” Adelson said. “It’s the same law with respect to product liability. It doesn’t matter what the product is, if it’s causing an injury that the government thinks needs to be regulated. An injury is an injury regardless of whether it was caused by new technology or old technology.”

And there are new wearable devices that may get law enforcement involved with its users, such as the jewelry created by San Francisco-based Cuff. The company makes necklaces and bracelets with a hidden wireless “panic button” that pings friends’ cell phones with the user’s location if the person wearing it is in danger.

“We can imagine that law enforcement could intervene and respond to Cuff users,” Adelson said.

Catherine Ho covers law and lobbying for Capital Business, which she joined in 2011. She was previously a reporter at the Daily Journal in Los Angeles, covering LA civil courts and labor and employment law.
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